Citation Nr: 1515149
Decision Date: 04/08/15 Archive Date: 04/21/15
DOCKET NO. 13-19 679 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Togus, Maine
THE ISSUES
1. Entitlement to service connection for diabetes mellitus, claimed as due to Agent Orange exposure.
2. Entitlement to service connection for oropharyngeal cancer, claimed as due to Agent Orange exposure.
REPRESENTATION
Appellant represented by: Penelope E. Gronbeck, Attorney
WITNESS AT HEARING ON APPEAL
Apellant
ATTORNEY FOR THE BOARD
James R. Springer, Associate Counsel
INTRODUCTION
The Veteran had active duty service from January 1967 to October 1973.
This appeal to the Board of Veterans' Appeals (Board) arose from a January 2012 rating decision in which the RO denied the Veteran's claims for service connection for diabetes mellitus and oropharyngeal cancer, both as due to Agent Orange exposure. In January 2012, the Veteran filed a notice of disagreement (NOD) with the assigned rating. A statement of the case (SOC) was issued in April 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeals to the Board of Veterans' Appeals) in May 2013.
In October 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record.
The Board notes that, in addition to the paper claims file, the Veteran has paperless, electronic Virtual VA and Virtual Benefits Management System (VBMS) files. The Board has considered these electronic records in its adjudication of the Veteran's case.
For the reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required.
REMAND
The Board's review of the claims file reveals that further AOJ action in this appeal is warranted.
The Veteran contends that his diagnosed diabetes mellitus and oropharyngeal cancer are due to his exposure to Agent Orange while in service. The Veteran claims that, while stationed at Nakhon Phanom Air Force Base and Ubon Airfield in Thailand as a munitions maintenance specialist, he was exposed to Agent Orange while working along the perimeter of both bases. Specifically, in a May 2011 statement, the Veteran stated that the munitions storage area was always positioned near the perimeter, away from the general population. He also stated that he spent several months working in a trailer maintenance shed that was only 10 feet from the perimeter. In addition, during his Board hearing, the Veteran stated that his work as a munitions maintenance specialist always placed him in "bomb zones" which were always situated close to the perimeter in case of explosion or accident. He also stated that hid duties include e would transfer weapons from the bomb storage facilities near the perimeter to the flight line. The Veteran also claimed he may have been sprayed with Agent Orange in the spring of 1968.
The Board notes that diabetes mellitus is one of the disabilities, listed in 38 C.F.R. § 3.309(e), which the VA Secretary has determined that there exists an etiological relationship to exposure to herbicides (to include Agent Orange), and for which there is a presumption of service connection based on such exposure. See 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307. 3.309 (2014). Moreover, the the Veteran has submitted a letter from a private doctor indicating that, in his professional medical opinion, it is at least as likely as not that the Veteran's oropharyngeal cancer is s due to Orange exposure. Thus, these claims essentially turn on the question on whether the Veteran had in-service exposure to herbicides, to include Agent Orange, as alleged.The Veteran's service personnel records show that the Veteran was stationed at Nakhon Phanom Air Force Base from January 8, 1968, to December 28, 1968. See Chronological Listing of Service. His military occupational specialty (MOS) was munitions maintenance specialist. An Airman Performance Report from that time shows that he was a member of the 456 Munitions Maintenance Squadron at Nakhon Phanom Air Force Base. Another Airman Performance Report covering October 2, 1968 to July 8, 1969 shows the Veteran as a member of the 408 Munitions Maintenance Squadron at Ubon Airfield.
In response to the Veteran's claim, the AOJ submitted a request to the Personnel Information Exchange System (PIES) in an attempt to verify the Veteran's exposure to Agent Orange. The request covered October 1969 to October 1973. In June 2011, PIES responded that there were no records of exposure to herbicides during that timeframe. The Board notes that the time period specified by the AOJ is not the time period identified by the Veteran. Instead, the Veteran has continuously stated that he was exposed to Agent Orange in while stationed at Nakhon Phanom Air Force Base in 1968 and while stationed at Ubon Airfield during the first six months of 1969.
In January 2012, the AOJ issued a memorandum rendering a formal finding as to the lack of information required to corroborate the Veteran's exposure to Agent Orange, essentially finding that the information provided was insufficient to corroborate Agent Orange exposure. The AOJ cited the June 2010 PIES response discussed above, as well as a January 2012 PIES response indicating that all available records had been mailed. However, the Board notes that this January 2012 PIES response concerned a request related to the Veteran's claim for posttraumatic stress disorder, not Agent Orange exposure.
In February 2013, the AOJ submitted three requests to the U.S. Army Joint Services and Records Research Center (JSRRC) again attempting to verify exposure to Agent Orange. The requests covered November 1967 to October 1968, October 1968 to July 1969, and May 1972 to October 1972. In response, the JSRRC stated that the date ranges provide were too expansive, and that requests needed to be limited to 60-day periods. The AOJ did not submit an additional request.
In view of the above, the Board finds that the AOJ must undetake further action to attempt to verify the Veteran's likely herbicide exposure while stationed at Nakhon Phanom Air Force Base and Ubon Airfield in Thailand are inconclusive to the issue at hand. The Board notes that these requests have either covered the wrong timeframe or were too expansive for the JSRRC to respond. Accordingly, the AOJ should take further, appropriate action to attempt to verify the Veteran's alleged Agent Orange exposure during the correct time period, January 8, 1968 to December 28, 1968 at Nakhon Phanom Air Force Base, and December 28, 1968 to July 8, 1969 at Ubon Airfield, is warranted.
The Board is aware that the AOJ must limit requests to JSRRC to periods of no more than 60 days. However, the AOJ may should submit multiple requests to JSRRC covering the larger period of time, in order to satisfy VA's duty to assist. 38 C.F.R. § 3.159(c) (2014).
While this matter is on remand, to ensure that all due process requirements are met and the record is completed, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA treatment records.
Notably, as VA treatment records dated through August 2011 have been associated with the claims file, the AOJ should obtain pertinent records of VA treatment since that date.
Thr AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to his claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period).
Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159.
The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The AOJ's adjudication of the claims should include consideration of all additional evidence added to the record since the last adjudication.
Accordingly, these matters are hereby REMANDED for the following action:
1. Obtain any outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, dated since August 2011. Follow the provisions of 38 C.F.R. § 3.159 as regards obtaining records from Federal facilities in procuring such records. All records and/or responses received should be associated with the claims file.
2. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to any additional evidence pertinent to the appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records.
Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).
3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.
4. Contact the JSRRC (and any other relevant facility/ies) to request detailed unit information for the 456 Munitions Maintenance Squadron at Nakhon Phanom Air Force Base, for the period from January 8, 1968 to December 28, 1968, separated into distinct 60-day periods, to determine the location of the unit within the airfield. Appropriate action should also be undertaken to determine whether the Veteran's MOS of munitions maintenance specialist required regular contact with the base perimeter during these time periods.
Also, separately contact the JSRRC (and any other relevant facility/ies) to request detailed unit information for the 408 Munitions Maintenance Squadron at Ubon Airfield, for the period from December 28, 1968 to July 8, 1969, separated into distinct 60-day periods, to determine the location of the unit within the airfield. Appropriate action should also be undertaken to determine whether the Veteran's MOS of munitions maintenance specialist required regular contact with the base perimeter during these time periods.
If any contacted entity references a more appropriate facility from which to obtain the above-requested information, contact such facility. All requests and responses received should be associated with the claims file.
5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998).
6. After completing the above actions, and any other notification or development action deemed warranted, adjudicate the claims for service connection for diabetes mellitus and oropharyngeal cancer, to include as due to Agent Orange exposure, on the merits, in light of all pertinent evidence (to include all evidence received since the last adjudication of the claim in the April 2013 statement of the case) and legal authority.
7. If the claim remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.
The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
_________________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2014).